Chapter 31

[958]Mass. Col. Rec., IV, i, 401.[959]Of course, the alleged "wicked expense" may possibly have been admitted as a second ground.[960]Mass. Col. Rec., IV, i, 401. The reason for Halsall's petition is not stated. Was it, perhaps, that "male adultery" was not a sufficient ground of divorce?[961]The petition and decree here mentioned are not in theSuffolk Files. Perhaps further search in theMass. Archiveswould bring them to light.[962]MSS. Early Court Files of Suffolk, No. 1741 (Sept. 9).[963]Mass. Col. Rec., V, 205.[964]Case of Christopher and Elizabeth Lawson:MSS. Early Court Files of Suffolk, No. 913. Though the decree in this case has not been discovered, it is certain that it came before the assistants; for the papers in the proceedings are marked "vera copiaE[dward] R[awson] S[ec.]". In the Nailer case, mentioned below, there was similar reference from the county court to the court of assistants.[965]Mass. Col. Rec., IV, i, 259, 269;cf.Whitmore,Col. Laws of Mass.(1660-72), 100, note.[966]MSS. Rec. of the County Court of Middlesex, I, 85. In the same year the case of "Mary Batchiler" was referred for settlement to the county court of York:Mass. Col. Rec., IV, i, 282.[967]Ibid., 32.[968]Ibid., 89; III, 277.[969]Ibid., III, 350; IV, i, 190.[970]Ibid., IV, ii, 8.[971]Mary complained of her husband's "deficjency":ibid., IV, ii, 91.[972]Ibid., IV, ii, 465.[973]Ibid., V. 188.[974]MSS. Early Court Files of Suffolk, No. 1807. This document begins: "At a Generall Court." The case is also inMass. Col. Rec., V, 248, 249.[975]The divorce of James Skiffe was also granted "Att a Generall Court held vpon the Vineyard":Plym. Col. Rec., V, 33. See subsectionb) below.[976]These are the cases of Samuel Freeman (before 1656) and Philip Wharton (before 1678). The first is mentioned in the Halsall case.Cf.Whitmore,Col. Laws of Mass.(1660-72), 100, note, who says: "Samuel Freeman had a wife Apphia, and it has been thought that his widow married Gov. Thomas Prence of Plymouth. It has now been suggested that she was divorced, and married a second time while Freeman stayed in England, but this surmise needs examination." The second case is inferred from the following: "At a Circuit Court at Boston, Apr. 30, 1678, Philip Wharton and Mary Gridley, formerly his wife, bound over to answer for disorderly and offensive cohabiting together, having sued out a divorce. They owned they lived together. Bonds for good behavior until next court, especially to refrain from each other's company."—MSS. Records of the County Court of Suffolk, 506. Evidently it was common to resume the maiden name:cf.the Nailer and Lyndon cases.[977]Cases of Sarah Helwis, Sept. 9, 1664; Katherine Nailer, 1672; Mary Sanders, March 4, 1674/5; and Thomas Winsor, Sept. 17, 1685: all inMSS. Early Court Files of Suffolk, Nos. 651, 1148, 1360, 2347. The Sanders case is also inNoble'sRecords of the Court of Assistants;Cowley,Our Divorce Courts, 28.[978]The Nailer case. Two years later (March 11, 1674/5) we learn that "Edward Naylor being Complayned on for Intruding into his late wiues Katherin NannysCompany The Court on hearing what was lajd to the sajd Naylors charge doe Judge & declare his bond to be forfeited."—Noble'sRecords of Court of Assistants, I, 32.[979]It is just possible that in the case of Mary Drury, Oct. 10, 1677, the decree is intended as a separation from bed and board. It is voted "whether the Court [probably the assistants] would declare it a nullity, past in the negative. Whether they would be compelled to Cohabit past in yeNegative."—MSS. Early Court Files of Suffolk, No. 1644. Four years earlier (ca.March 5, 1673) the following record appears: "In the case of Hugh Drury & Mary His Wife The Court after due hearing of the case & euidences therein produced Doe declare that they Doe enjoine them both to liue together according to the ordinance of God as man and wife."—Noble'sRec. of Court of Assistants, I, 91.[980]Nov. 3, 1692:Acts and Resolves, I, 61.[981]Jan. 13, 1755:ibid., III, 782.[982]InWhitmore,Col. Laws of Mass.(1672-85), 42, the date is given as 1641; butibid.(1660-72), 146, it is 1647.[983]June 19, 1696:Acts and Resolves, I, 209;cf.Acts and Laws, 1692-1765, 60.[984]June 6, 1694:Acts and Resolves, I, 171, 172.[985]Dec. 2, 1698:ibid., 353, 354.[986]Jan. 29, 1710/11:MSS. Records of the Court of Gen. Sessions of Suffolk, I, 225.[987]Apr. 26, 1725:ibid., III, 330. For a similar case, seeibid., 311.In theMSS. Records of Superior Court of Judicature, 1725-30, fol. 284, may be found the following entry: At a court held for Barnstable and Duke's Cos., Apr. 21, 1730, "Hannah Marshall, wife of the Rev. Josiah Marshall, complained that she has lived with him for a considerable time past in daily fear of her life, threats of being brained, etc. Josiah appeared and made answer. Hannah admitted to her oath ... Court directed and advised her to keep at her father's house until further order from the Court or from the General Sessions. Josiah to find surety for his good behavior." This is the only case in these records between 1725 and 1780.[988]Beginning with No. 37, 1776, the record in each suit consists of (1) the charge; (2) the specifications; and (3) the decree. The cause or causes assigned in the charge are usually identical with those named in the decree; but the specifications often contain more points than does the charge. Before 1776 the record has two parts, there being but one instance (No. 22, 1770) of a charge before that date.[989]Defendant contumacious: does not appear to defend, though repeatedly summoned.[990]However, in Nos. 34 (1773) and 36 (1774), Table III, adultery of the husband is the only reason for the divorce mentioned in the decree, but other grounds are specified in the petition. Perhaps these may be regarded as the earliest cases of divorce for "male adultery" during the eighteenth century.[991]See Table III, Nos. 18, 32, 33, 36, 58.[992]Table III, No. 21. This is the only case where custody of a child is asked for. In all other cases where children are mentioned they are already in the hands of the plaintiff; and in no instance are children referred to in the decree. Separation from bed and board is usually granted for cruelty (see Table III, Nos. 5a, 24, 18, 55, 65, 83a, 84); but a full divorce is never granted for this cause alone.[993]Table III, Nos. 83, 83a. With this case may be compared that of Sarahv.William Vernon (Nos. 87, 87a, 87b). On October 16, 1784, the wife asked for such relief as the "laws of the land" provide, charging her husband with adultery and cruelty. The court found the evidence insufficient for either kind of divorce; but on July 21, 1785, the marriage was dissolved on the ground of adultery alone. Singularly enough, her petition for alimony six days later was denied.[994]Table III, No. 29.Cf.Nos. 32 and 50, where marriage is dissolved for desertion accompanied by adultery (or remarriage).[995]On April 22, 1760, for this offense "William Arbuthnot, Esq.," secured a divorce from his wife. In his petition he explains "that the reason of his application to this Court, before ... Eleanor hath been legally convicted of adultery by the course of Common Law, is, because the said Eleanor before she could be prosecuted" absconded ... and still continues out of the jurisdiction of the Common Law Courts of this Province": see Table III, No. 1. In Nos. 17, 20, 41, 56, and 57 the decree is based in part on proceedings in other courts; while in Nos. 78 and 80 such proceedings are pleaded.[996]See Table III, Nos. 2, 8, 15, 24, 25, 26, 74, 85.[997]MSS. Early Court Files of Suffolk, DCCXCIII, No. .29730: see Table II, Nos. 5 and 6.[998]In Table III, Nos. 11 and 19, after previous written agreement, separation from bed and board with alimony is allowed. The same is true of No. 65, except that the wife retained her right of dower. Nos. 55, 56, and 57 are cases of verbal agreement; but this does not constitute the sole reason for the decree.[999]Table III, No. 4;cf.Table III, No. 7, and Table II, No. 8.[1000]In 1745 a slave was allowed a divorce for his wife's adultery with a white man: see Gray's note to Oliverv.Sale inQuincy,Reports, 29; andBishop,Mar., Div., and Sep., I, 282.[1001]Acts and Laws of ... New Hamp., 1696-1726 (Boston, 1726), 10;ibid.(Portsmouth, 1761), 54;ibid.(Portsmouth, 1771), 11.[1002]The petition is in the "Province Records and Court Papers":Coll. New Hamp. Hist. Soc., VIII, 68.[1003]Woolsey,Divorce, 196, says, "At first, divorces were mainly, if not quite exclusively, granted by an act of a colonial legislature, in accordance, perhaps, with the practice then, and until recently, existing in England, for the House of Peers to take cases of dissolution of marriage into their own hands." This statement is of course too broad; butCowleyis decidedly in error when he declares that the "remark of President Woolsey requires modification with respect to Rhode Island, and still more with respect to Connecticut. Neither Massachusetts nor New York nor any other Colony or State knew anything of legislative divorce until a much later day."—Our Divorce Courts, 22.[1004]So stated byGoodwin,Pilgrim Republic, 596, 597, who gives a list of the cases, to which, after independent examination of thePlymouth Records, I am unable to add any new examples.[1005]Ply. Col. Rec., IV, 66 (1664), 187, 192 (1668), 42, 46, 47 (earlier notices).Cf.Goodwin,op. cit., 596.[1006]Ply. Col. Rec., V, 127.[1007]Goodwin,op. cit., 597. The case is inPly. Col. Rec., V, 159.[1008]On the Connecticut law as to seven years' absence,Swift,Digest of the Laws of the State of Conn., I, 21, says: "By common law, that period of absence unheard of, is presumptive evidence of the death of the person; yet in such cases it would be proper that there should be a divorce before a marriage is had, for if the party should return, the first marriage would undoubtedly be valid, though by the [Connecticut] statute a prosecution for the crime of bigamy could not be sustained."[1009]Ply. Col. Rec., VI, 44, 45.[1010]Ibid., 190.[1011]There are two other references to divorce matters in theRecords. In 1670, on his wife's confession of legal cause, Samuel Hallowey petitioned for a divorce; but the court, "being not very clear," postponed the case three months to see if the wife would persist in her confession or the parties become reconciled. In June the case was referred to two men for examination; but it is not again mentioned:ibid., V, 32, 41, 42.Cf.Goodwin,op. cit., 597. Again, curiously enough, we find here the certified copy of a decree of divorce granted in the Massachusetts jurisdiction to James Skiffe, "late inhabitant of Sandwich, but now att the Viniyard," by a "Generall Court" held on that island. Skiffe's wife had run away to Roanoke with another man:Ply. Col. Rec., V, 33.[1012]This, of course, is practically equivalent to "fraudulent contract" as usually permitted in the modern statutes.[1013]For the foregoing orders seeNew Haven's Settling in New England. And some Lawes for Government published for the Use of that Colony(London, 1656): inNew Haven Col. Rec., II, 586. They are also embodied in the code of 1655:Trumbull,Blue Laws, 241, 242. Their date is not given, but it is probably previous to 1648 or 1649:New Haven Col. Rec., II, preface, iv;Trumbull,op. cit., 40.[1014]New Haven Col. Rec., II, 479, citing also "1 Cor., 7:15," as in the order before cited.[1015]Swift,System of the Laws of the State of Conn.(Windham, 1795), I, 192;cf. idem,Digest(New Haven, 1823), I, 24, 25.[1016]Swift,System of the Laws, I, 193.[1017]SeePublic Statute Laws of the State of Conn.(Hartford, 1808), I, 236, editorial note 1; alsoSwift,Digest, I, 24, 25.[1018]Conn. Col. Rec.(Oct. 18, 1677), II, 328: "It is ordered, by this court that noe bill of divorce shall be granted to any man or woman lawfully married but in case of adultery, fradulent contract, or willful desertion for three years with totall neglect of duty, or seven years' providentiall absence being not heard of after due enquiry made and certifyed, such party shall be counted as legally dead to the other party; in all which cases a bill of divorce may be granted by the Court of Assistants to the aggrieved party who may then lawfully marry or be marryed to any other."[1019]Acts and Laws(New London, 1715), 28;ibid.(New London, 1750), 43;ibid.(New Haven, 1769), 43. Almost the only change during the period mentioned in the text is the substitution of "superior court" for "court of assistants."Cf.Pub. Stat. Laws(1808), 236 n. 1. As in Massachusetts, the divorced wife is to have a part of the husband's estate, not exceeding one-third thereof:Acts and Laws(1769), 146.[1020]Act of June 6, 1843:Public Acts(1843), 20;Revision of the Stat. of the State of Conn.(Hartford, 1849), 274.[1021]Swift,Digest, I, 21.[1022]This is the view ofSwift,Digest, I, 21, 22, referring toBlackstone,Commentaries, III, 94. Thus a decision of the Connecticut superior court of errors seems to limit "fraud" as a cause of divorce to "corporal imbecility": 1Day,Reports, 111. But in 1848, at the August term of the superior court for Litchfield county, "it was held ... upon a consultation with judges of the Supreme Court, that where a woman at the time of her marriage was pregnant with a bastard child, and fraudulently concealed the fact from her husband, this was a sufficient cause for a divorce."—Dutton and Cowdrey'sRevision of Swift's Digest(New Haven, 1851), I, 22; citing 9Conn. Rep., 321; and for New York, where a similar practice prevailed, 4Johnson,Chancery Rep., 343. In the earlier period doubtless a still broader meaning was given to the term "fradulent contract": see the examples for illustration inSwift,Digest, I, 22.[1023]Swift,System of the Laws, I, 193.[1024]Conn. Col. Rec., I, 275 (May 17, 1655).[1025]Ibid., 301 (Aug. 12, 1657).[1026]Ibid., 362 (Mch. 14, 1660).[1027]Ibid., 379 (May 15, 1662).[1028]Ibid., II, 129 (May 12, 1670).[1029]Ibid., 292, note.[1030]Ibid., 292 (Oct. 21, 1676).[1031]Ibid., 293 (Oct. 18, 1677). For two cases of divorce, each for six years' desertion, seeibid., 293 (Oct. 12, 1676), 322 (Oct. 11, 1677); one for five years' desertion,ibid., 327 (Oct. 18, 1677); and another for three years' "wilful" desertion,ibid., III, 23 (1678).[1032]Conn. Col. Rec., IV, 37 (Oct. 9, 1690).[1033]Ibid., 52, 53 (May, 1691).[1034]Ibid., 59 (Oct. 8, 1691).[1035]In a pamphlet entitledAppeal to the Public(New Haven, 1788), full of errors,Trumbullattacks the divorce laws of his state. According to him (48), there is no example of divorce in New York from the settlement to 1787; and with equal inaccuracy he declares (46) that "in the Massachusetts and Connecticut codes printed at Cambridge 1672, there is no law respecting divorce. The law of Connecticut relating to it was made five years after, Oct. 11, 1677." For Connecticut he makes the further extraordinary statement (46) that "more than forty years from the settlement" elapsed "before any such law was in existence. No divorce was given by virtue of the law, till the year 1692. After this divorces were, for many years, sparingly given. But as they became customary, as there were no punishments for delinquents, and as the shame decreased with the growth of the practice, they have, within this few years, had a rapid increase. In less than a century [1692-1788], four hundred and thirty-nine (439) pair ... have been separated by divorce. This whole number, forty-eight couple excepted, have been divorced in the short term of fifty-two years. Between twenty and thirty pair ... are now annually "thus separated" in the Superior Court, besides those put asunder by the General Assembly. About twenty times as many are now divorced annually, as were in almost sixty years after the first settlement of the State; and about half as many as were divorced through the whole first century. Seventeen pair have been divorced last circuit." It is to be hoped that the statistics are more trustworthy than the history.[1036]Conn. Col. Rec., X, 168 (May, 1753).[1037]Ibid., XI, 544, 545 (May, 1761).[1038]Thus a divorce was granted in 1774:ibid., XIV, 223, 387, 388; and two instances occurred in May, 1821:Swift,Digest, I, 23.[1039]An act of 1837 refers incidentally to divorces which have been or shall be "granted, either by the general assembly or by the superior court, on the application of a married woman."—Pub. Stat. Laws(1837), 33; also inPub. Stat. Laws(general revision, 1838), 187. Query: Did this act invite and authorize appeal to the assembly in such matters?[1040]For the annual lists of divorces granted by the assembly seeResolves and Private Acts of the State of Conn.(1837), 3 ff.;ibid.(1838), 13-16;ibid.(1839), 28-42;ibid.(1840),9-14;ibid.(1841), 23-28;ibid.(1842), 4-16;ibid.(1843), 10-20;ibid.(1844), 8;ibid.(1845), 15, 16;ibid.(1846), 15-19;ibid.(1847), 31-34;ibid.(1848), 61-69;ibid.(1849), 46-56. The last of these divorces is that of Candace Williams, of New Haven, from F. Walter Williams, May, 1850;ibid.(1850), 21.[1041]Here is a typical case, though often the resolve is much briefer:"Upon the petition of Polly M. Mead of Danbury, Fairfield County, and State of Connecticut, praying a bill of divorce from her husband, Martin Mead of said Danbury, which petition was duly served and returned:"Resolved by the Assembly, that the said Polly M. Mead be, and she is hereby divorced from the said Martin Mead, and is and forever hereafter shall be absolved from all obligations to the said Martin Mead by virtue of the said marriage contract, and is hereby declared to all intents and purposes, sole, single and unmarried."Resolved that the said Polly ... have the sole charge, care and custody of her only child, and that the said Martin ... shall have no power or authority over him, in any way or manner whatsoever."—Resolves and Private Acts(1837), 3.[1042]Act of June 19, 1849:Pub. Acts of the State of Conn.(Hartford, 1849), 17.[1043]Rhode Island Col. Rec., I, 231 (Oct. 26, 1650);cf.Arnold,Hist. of R. I., I, 322.[1044]R. I. Col. Rec., I, 312 (1655). "And if any persons in this Colonie," continues the order, "shall part themselves and marrie again without yeauthoritie of yeCourt of Commissioners, or be convicted of carnal copulation with any other [bigamy], they shall be punished as in case of adulterie."—Ibid., 312.[1045]Ibid., 319.[1046]Peter Talman got a divorce on his wife's confession of adultery:Arnold,Hist. of R. I., I, 320; and it "was ordered that Thomas Genings shall goe and demand his wife to live with him, but in case she refuse, he shall make his addresses to the General Court of Commissioners."—R. I. Col. Rec., I, 312. Ann Talman, the divorced wife of Peter, referred to, was later more than once whipped for her misconduct:ibid., II, 187,188.[1047]Durfee,Gleanings from the Judicial Hist. of R. I., 35.[1048]Carr, Cartwright, and Maverick.[1049]Is this the same "John Hicks" who in New Netherland obtained a divorce in 1655? See sec. iii, below.[1050]R. I. Col. Rec., II, 99 ff. At the same time, with astonishing inconsistency, it was enacted that similar offenders shall be amenable to the laws punishing fornication, which are made more stringent; but all present reputed marriages are declared valid and the children legitimate (104, 105). By this rule Horod and George should either have been regularly divorced or ordered to cohabit as husband and wife. In any event their punishment was unjust.[1051]Ibid., 188, 189. In the same year Robert Colwell got a divorce from his wife Mary:ibid., 204.[1052]Arnold,Hist. of R. I., I, 320. This case came before the assembly in 1665:R. I. Col. Rec., II, 119-21;cf.Durfee,Gleanings from the Judicial Hist. of R. I., 35.[1053]Arnold,Hist. of R. I., I, 365 (Nov., 1672). This bill was granted to Richard and Mary Pray, whom the assembly had permitted to live apart in 1667:R. I. Col. Rec., II, 479.[1054]Ibid.(1664-77), 543.[1055]The entry is marked "returned to county court":Early Records of Muddy River, 69.[1056]Arnold,op. cit., I, 470 (June, 1683).[1057]Ibid., 483 (1685).[1058]SeeActs and Laws(Newport, 1767), 74, containing the changes made in 1749 and 1754. The superior court is authorized in its discretion to grant alimony from the husband's estate.[1059]In that year the court of trials, composed of the governor and assistants or councillors, which with no essential change in composition and functions had existed from about 1644, was superseded by a regular law tribunal, the superior court of judicature:Arnold,op. cit., II, 157. But already in 1729 a "Superior Court," composed of at least five members of the upper branch of the legislature, and apparently lower than the court of trials, was established:ibid., 90. In general on the various stages in the history of the court of trials, seeibid., I, 210 (1647), 302 (1663-64), 460 (1680); II, 16 (1704).[1060]In Oct., 1749, a divorce was granted by the assembly; and this is the first Arnold had noticed, probably meaning in that period:op. cit., II, 175.[1061]Durfee,Gleanings from the Judicial Hist. of R. I., 35, 36. SeeLaws of R. I.(1851), 796, where petitions for divorce on account of wilful desertion are transferred by the assembly to the supreme court; and similar reference,ibid.(1846), 57, 85.[1062]Bishop,Mar., Div., and Sep., I, § 116. "If an uninhabited country is discovered and planted by British subjects, the English laws are said to be in force there, for the law is the birthright of every subject."—Story,Commentaries, I, §§ 147 ff.Cf.Kent,Commentaries, I, 343, 473; andBlackstone,Commentaries, I, 107, who regards the colonies as a conquered country.[1063]Bishop,First Book, §§ 51-59;idem,Mar., Div., and Sep., I, § 117.[1064]The expression "all laws" is used advisedly. Though "in some of the American cases the term 'common law' is used, the broad meaning of the term, not its narrow and technical one, is intended."—Bishop,Mar., Div., and Sep., I, § 119; citing C.v.Knowlton, 2Mass. Rep., 530, 534: Sackettv.Sackett, 8Pickering,Reports, 309, 316.Cf.Jefferson,Works, VI, 65; VIII, 374, 379; IX, 282.

[958]Mass. Col. Rec., IV, i, 401.

[959]Of course, the alleged "wicked expense" may possibly have been admitted as a second ground.

[960]Mass. Col. Rec., IV, i, 401. The reason for Halsall's petition is not stated. Was it, perhaps, that "male adultery" was not a sufficient ground of divorce?

[961]The petition and decree here mentioned are not in theSuffolk Files. Perhaps further search in theMass. Archiveswould bring them to light.

[962]MSS. Early Court Files of Suffolk, No. 1741 (Sept. 9).

[963]Mass. Col. Rec., V, 205.

[964]Case of Christopher and Elizabeth Lawson:MSS. Early Court Files of Suffolk, No. 913. Though the decree in this case has not been discovered, it is certain that it came before the assistants; for the papers in the proceedings are marked "vera copiaE[dward] R[awson] S[ec.]". In the Nailer case, mentioned below, there was similar reference from the county court to the court of assistants.

[965]Mass. Col. Rec., IV, i, 259, 269;cf.Whitmore,Col. Laws of Mass.(1660-72), 100, note.

[966]MSS. Rec. of the County Court of Middlesex, I, 85. In the same year the case of "Mary Batchiler" was referred for settlement to the county court of York:Mass. Col. Rec., IV, i, 282.

[967]Ibid., 32.

[968]Ibid., 89; III, 277.

[969]Ibid., III, 350; IV, i, 190.

[970]Ibid., IV, ii, 8.

[971]Mary complained of her husband's "deficjency":ibid., IV, ii, 91.

[972]Ibid., IV, ii, 465.

[973]Ibid., V. 188.

[974]MSS. Early Court Files of Suffolk, No. 1807. This document begins: "At a Generall Court." The case is also inMass. Col. Rec., V, 248, 249.

[975]The divorce of James Skiffe was also granted "Att a Generall Court held vpon the Vineyard":Plym. Col. Rec., V, 33. See subsectionb) below.

[976]These are the cases of Samuel Freeman (before 1656) and Philip Wharton (before 1678). The first is mentioned in the Halsall case.Cf.Whitmore,Col. Laws of Mass.(1660-72), 100, note, who says: "Samuel Freeman had a wife Apphia, and it has been thought that his widow married Gov. Thomas Prence of Plymouth. It has now been suggested that she was divorced, and married a second time while Freeman stayed in England, but this surmise needs examination." The second case is inferred from the following: "At a Circuit Court at Boston, Apr. 30, 1678, Philip Wharton and Mary Gridley, formerly his wife, bound over to answer for disorderly and offensive cohabiting together, having sued out a divorce. They owned they lived together. Bonds for good behavior until next court, especially to refrain from each other's company."—MSS. Records of the County Court of Suffolk, 506. Evidently it was common to resume the maiden name:cf.the Nailer and Lyndon cases.

[977]Cases of Sarah Helwis, Sept. 9, 1664; Katherine Nailer, 1672; Mary Sanders, March 4, 1674/5; and Thomas Winsor, Sept. 17, 1685: all inMSS. Early Court Files of Suffolk, Nos. 651, 1148, 1360, 2347. The Sanders case is also inNoble'sRecords of the Court of Assistants;Cowley,Our Divorce Courts, 28.

[978]The Nailer case. Two years later (March 11, 1674/5) we learn that "Edward Naylor being Complayned on for Intruding into his late wiues Katherin NannysCompany The Court on hearing what was lajd to the sajd Naylors charge doe Judge & declare his bond to be forfeited."—Noble'sRecords of Court of Assistants, I, 32.

[979]It is just possible that in the case of Mary Drury, Oct. 10, 1677, the decree is intended as a separation from bed and board. It is voted "whether the Court [probably the assistants] would declare it a nullity, past in the negative. Whether they would be compelled to Cohabit past in yeNegative."—MSS. Early Court Files of Suffolk, No. 1644. Four years earlier (ca.March 5, 1673) the following record appears: "In the case of Hugh Drury & Mary His Wife The Court after due hearing of the case & euidences therein produced Doe declare that they Doe enjoine them both to liue together according to the ordinance of God as man and wife."—Noble'sRec. of Court of Assistants, I, 91.

[980]Nov. 3, 1692:Acts and Resolves, I, 61.

[981]Jan. 13, 1755:ibid., III, 782.

[982]InWhitmore,Col. Laws of Mass.(1672-85), 42, the date is given as 1641; butibid.(1660-72), 146, it is 1647.

[983]June 19, 1696:Acts and Resolves, I, 209;cf.Acts and Laws, 1692-1765, 60.

[984]June 6, 1694:Acts and Resolves, I, 171, 172.

[985]Dec. 2, 1698:ibid., 353, 354.

[986]Jan. 29, 1710/11:MSS. Records of the Court of Gen. Sessions of Suffolk, I, 225.

[987]Apr. 26, 1725:ibid., III, 330. For a similar case, seeibid., 311.In theMSS. Records of Superior Court of Judicature, 1725-30, fol. 284, may be found the following entry: At a court held for Barnstable and Duke's Cos., Apr. 21, 1730, "Hannah Marshall, wife of the Rev. Josiah Marshall, complained that she has lived with him for a considerable time past in daily fear of her life, threats of being brained, etc. Josiah appeared and made answer. Hannah admitted to her oath ... Court directed and advised her to keep at her father's house until further order from the Court or from the General Sessions. Josiah to find surety for his good behavior." This is the only case in these records between 1725 and 1780.

[987]Apr. 26, 1725:ibid., III, 330. For a similar case, seeibid., 311.

In theMSS. Records of Superior Court of Judicature, 1725-30, fol. 284, may be found the following entry: At a court held for Barnstable and Duke's Cos., Apr. 21, 1730, "Hannah Marshall, wife of the Rev. Josiah Marshall, complained that she has lived with him for a considerable time past in daily fear of her life, threats of being brained, etc. Josiah appeared and made answer. Hannah admitted to her oath ... Court directed and advised her to keep at her father's house until further order from the Court or from the General Sessions. Josiah to find surety for his good behavior." This is the only case in these records between 1725 and 1780.

[988]Beginning with No. 37, 1776, the record in each suit consists of (1) the charge; (2) the specifications; and (3) the decree. The cause or causes assigned in the charge are usually identical with those named in the decree; but the specifications often contain more points than does the charge. Before 1776 the record has two parts, there being but one instance (No. 22, 1770) of a charge before that date.

[989]Defendant contumacious: does not appear to defend, though repeatedly summoned.

[990]However, in Nos. 34 (1773) and 36 (1774), Table III, adultery of the husband is the only reason for the divorce mentioned in the decree, but other grounds are specified in the petition. Perhaps these may be regarded as the earliest cases of divorce for "male adultery" during the eighteenth century.

[991]See Table III, Nos. 18, 32, 33, 36, 58.

[992]Table III, No. 21. This is the only case where custody of a child is asked for. In all other cases where children are mentioned they are already in the hands of the plaintiff; and in no instance are children referred to in the decree. Separation from bed and board is usually granted for cruelty (see Table III, Nos. 5a, 24, 18, 55, 65, 83a, 84); but a full divorce is never granted for this cause alone.

[993]Table III, Nos. 83, 83a. With this case may be compared that of Sarahv.William Vernon (Nos. 87, 87a, 87b). On October 16, 1784, the wife asked for such relief as the "laws of the land" provide, charging her husband with adultery and cruelty. The court found the evidence insufficient for either kind of divorce; but on July 21, 1785, the marriage was dissolved on the ground of adultery alone. Singularly enough, her petition for alimony six days later was denied.

[994]Table III, No. 29.Cf.Nos. 32 and 50, where marriage is dissolved for desertion accompanied by adultery (or remarriage).

[995]On April 22, 1760, for this offense "William Arbuthnot, Esq.," secured a divorce from his wife. In his petition he explains "that the reason of his application to this Court, before ... Eleanor hath been legally convicted of adultery by the course of Common Law, is, because the said Eleanor before she could be prosecuted" absconded ... and still continues out of the jurisdiction of the Common Law Courts of this Province": see Table III, No. 1. In Nos. 17, 20, 41, 56, and 57 the decree is based in part on proceedings in other courts; while in Nos. 78 and 80 such proceedings are pleaded.

[996]See Table III, Nos. 2, 8, 15, 24, 25, 26, 74, 85.

[997]MSS. Early Court Files of Suffolk, DCCXCIII, No. .29730: see Table II, Nos. 5 and 6.

[998]In Table III, Nos. 11 and 19, after previous written agreement, separation from bed and board with alimony is allowed. The same is true of No. 65, except that the wife retained her right of dower. Nos. 55, 56, and 57 are cases of verbal agreement; but this does not constitute the sole reason for the decree.

[999]Table III, No. 4;cf.Table III, No. 7, and Table II, No. 8.

[1000]In 1745 a slave was allowed a divorce for his wife's adultery with a white man: see Gray's note to Oliverv.Sale inQuincy,Reports, 29; andBishop,Mar., Div., and Sep., I, 282.

[1001]Acts and Laws of ... New Hamp., 1696-1726 (Boston, 1726), 10;ibid.(Portsmouth, 1761), 54;ibid.(Portsmouth, 1771), 11.

[1002]The petition is in the "Province Records and Court Papers":Coll. New Hamp. Hist. Soc., VIII, 68.

[1003]Woolsey,Divorce, 196, says, "At first, divorces were mainly, if not quite exclusively, granted by an act of a colonial legislature, in accordance, perhaps, with the practice then, and until recently, existing in England, for the House of Peers to take cases of dissolution of marriage into their own hands." This statement is of course too broad; butCowleyis decidedly in error when he declares that the "remark of President Woolsey requires modification with respect to Rhode Island, and still more with respect to Connecticut. Neither Massachusetts nor New York nor any other Colony or State knew anything of legislative divorce until a much later day."—Our Divorce Courts, 22.

[1004]So stated byGoodwin,Pilgrim Republic, 596, 597, who gives a list of the cases, to which, after independent examination of thePlymouth Records, I am unable to add any new examples.

[1005]Ply. Col. Rec., IV, 66 (1664), 187, 192 (1668), 42, 46, 47 (earlier notices).Cf.Goodwin,op. cit., 596.

[1006]Ply. Col. Rec., V, 127.

[1007]Goodwin,op. cit., 597. The case is inPly. Col. Rec., V, 159.

[1008]On the Connecticut law as to seven years' absence,Swift,Digest of the Laws of the State of Conn., I, 21, says: "By common law, that period of absence unheard of, is presumptive evidence of the death of the person; yet in such cases it would be proper that there should be a divorce before a marriage is had, for if the party should return, the first marriage would undoubtedly be valid, though by the [Connecticut] statute a prosecution for the crime of bigamy could not be sustained."

[1009]Ply. Col. Rec., VI, 44, 45.

[1010]Ibid., 190.

[1011]There are two other references to divorce matters in theRecords. In 1670, on his wife's confession of legal cause, Samuel Hallowey petitioned for a divorce; but the court, "being not very clear," postponed the case three months to see if the wife would persist in her confession or the parties become reconciled. In June the case was referred to two men for examination; but it is not again mentioned:ibid., V, 32, 41, 42.Cf.Goodwin,op. cit., 597. Again, curiously enough, we find here the certified copy of a decree of divorce granted in the Massachusetts jurisdiction to James Skiffe, "late inhabitant of Sandwich, but now att the Viniyard," by a "Generall Court" held on that island. Skiffe's wife had run away to Roanoke with another man:Ply. Col. Rec., V, 33.

[1012]This, of course, is practically equivalent to "fraudulent contract" as usually permitted in the modern statutes.

[1013]For the foregoing orders seeNew Haven's Settling in New England. And some Lawes for Government published for the Use of that Colony(London, 1656): inNew Haven Col. Rec., II, 586. They are also embodied in the code of 1655:Trumbull,Blue Laws, 241, 242. Their date is not given, but it is probably previous to 1648 or 1649:New Haven Col. Rec., II, preface, iv;Trumbull,op. cit., 40.

[1014]New Haven Col. Rec., II, 479, citing also "1 Cor., 7:15," as in the order before cited.

[1015]Swift,System of the Laws of the State of Conn.(Windham, 1795), I, 192;cf. idem,Digest(New Haven, 1823), I, 24, 25.

[1016]Swift,System of the Laws, I, 193.

[1017]SeePublic Statute Laws of the State of Conn.(Hartford, 1808), I, 236, editorial note 1; alsoSwift,Digest, I, 24, 25.

[1018]Conn. Col. Rec.(Oct. 18, 1677), II, 328: "It is ordered, by this court that noe bill of divorce shall be granted to any man or woman lawfully married but in case of adultery, fradulent contract, or willful desertion for three years with totall neglect of duty, or seven years' providentiall absence being not heard of after due enquiry made and certifyed, such party shall be counted as legally dead to the other party; in all which cases a bill of divorce may be granted by the Court of Assistants to the aggrieved party who may then lawfully marry or be marryed to any other."

[1019]Acts and Laws(New London, 1715), 28;ibid.(New London, 1750), 43;ibid.(New Haven, 1769), 43. Almost the only change during the period mentioned in the text is the substitution of "superior court" for "court of assistants."Cf.Pub. Stat. Laws(1808), 236 n. 1. As in Massachusetts, the divorced wife is to have a part of the husband's estate, not exceeding one-third thereof:Acts and Laws(1769), 146.

[1020]Act of June 6, 1843:Public Acts(1843), 20;Revision of the Stat. of the State of Conn.(Hartford, 1849), 274.

[1021]Swift,Digest, I, 21.

[1022]This is the view ofSwift,Digest, I, 21, 22, referring toBlackstone,Commentaries, III, 94. Thus a decision of the Connecticut superior court of errors seems to limit "fraud" as a cause of divorce to "corporal imbecility": 1Day,Reports, 111. But in 1848, at the August term of the superior court for Litchfield county, "it was held ... upon a consultation with judges of the Supreme Court, that where a woman at the time of her marriage was pregnant with a bastard child, and fraudulently concealed the fact from her husband, this was a sufficient cause for a divorce."—Dutton and Cowdrey'sRevision of Swift's Digest(New Haven, 1851), I, 22; citing 9Conn. Rep., 321; and for New York, where a similar practice prevailed, 4Johnson,Chancery Rep., 343. In the earlier period doubtless a still broader meaning was given to the term "fradulent contract": see the examples for illustration inSwift,Digest, I, 22.

[1023]Swift,System of the Laws, I, 193.

[1024]Conn. Col. Rec., I, 275 (May 17, 1655).

[1025]Ibid., 301 (Aug. 12, 1657).

[1026]Ibid., 362 (Mch. 14, 1660).

[1027]Ibid., 379 (May 15, 1662).

[1028]Ibid., II, 129 (May 12, 1670).

[1029]Ibid., 292, note.

[1030]Ibid., 292 (Oct. 21, 1676).

[1031]Ibid., 293 (Oct. 18, 1677). For two cases of divorce, each for six years' desertion, seeibid., 293 (Oct. 12, 1676), 322 (Oct. 11, 1677); one for five years' desertion,ibid., 327 (Oct. 18, 1677); and another for three years' "wilful" desertion,ibid., III, 23 (1678).

[1032]Conn. Col. Rec., IV, 37 (Oct. 9, 1690).

[1033]Ibid., 52, 53 (May, 1691).

[1034]Ibid., 59 (Oct. 8, 1691).

[1035]In a pamphlet entitledAppeal to the Public(New Haven, 1788), full of errors,Trumbullattacks the divorce laws of his state. According to him (48), there is no example of divorce in New York from the settlement to 1787; and with equal inaccuracy he declares (46) that "in the Massachusetts and Connecticut codes printed at Cambridge 1672, there is no law respecting divorce. The law of Connecticut relating to it was made five years after, Oct. 11, 1677." For Connecticut he makes the further extraordinary statement (46) that "more than forty years from the settlement" elapsed "before any such law was in existence. No divorce was given by virtue of the law, till the year 1692. After this divorces were, for many years, sparingly given. But as they became customary, as there were no punishments for delinquents, and as the shame decreased with the growth of the practice, they have, within this few years, had a rapid increase. In less than a century [1692-1788], four hundred and thirty-nine (439) pair ... have been separated by divorce. This whole number, forty-eight couple excepted, have been divorced in the short term of fifty-two years. Between twenty and thirty pair ... are now annually "thus separated" in the Superior Court, besides those put asunder by the General Assembly. About twenty times as many are now divorced annually, as were in almost sixty years after the first settlement of the State; and about half as many as were divorced through the whole first century. Seventeen pair have been divorced last circuit." It is to be hoped that the statistics are more trustworthy than the history.

[1036]Conn. Col. Rec., X, 168 (May, 1753).

[1037]Ibid., XI, 544, 545 (May, 1761).

[1038]Thus a divorce was granted in 1774:ibid., XIV, 223, 387, 388; and two instances occurred in May, 1821:Swift,Digest, I, 23.

[1039]An act of 1837 refers incidentally to divorces which have been or shall be "granted, either by the general assembly or by the superior court, on the application of a married woman."—Pub. Stat. Laws(1837), 33; also inPub. Stat. Laws(general revision, 1838), 187. Query: Did this act invite and authorize appeal to the assembly in such matters?

[1040]For the annual lists of divorces granted by the assembly seeResolves and Private Acts of the State of Conn.(1837), 3 ff.;ibid.(1838), 13-16;ibid.(1839), 28-42;ibid.(1840),9-14;ibid.(1841), 23-28;ibid.(1842), 4-16;ibid.(1843), 10-20;ibid.(1844), 8;ibid.(1845), 15, 16;ibid.(1846), 15-19;ibid.(1847), 31-34;ibid.(1848), 61-69;ibid.(1849), 46-56. The last of these divorces is that of Candace Williams, of New Haven, from F. Walter Williams, May, 1850;ibid.(1850), 21.

[1041]Here is a typical case, though often the resolve is much briefer:"Upon the petition of Polly M. Mead of Danbury, Fairfield County, and State of Connecticut, praying a bill of divorce from her husband, Martin Mead of said Danbury, which petition was duly served and returned:"Resolved by the Assembly, that the said Polly M. Mead be, and she is hereby divorced from the said Martin Mead, and is and forever hereafter shall be absolved from all obligations to the said Martin Mead by virtue of the said marriage contract, and is hereby declared to all intents and purposes, sole, single and unmarried."Resolved that the said Polly ... have the sole charge, care and custody of her only child, and that the said Martin ... shall have no power or authority over him, in any way or manner whatsoever."—Resolves and Private Acts(1837), 3.

[1041]Here is a typical case, though often the resolve is much briefer:

"Upon the petition of Polly M. Mead of Danbury, Fairfield County, and State of Connecticut, praying a bill of divorce from her husband, Martin Mead of said Danbury, which petition was duly served and returned:

"Resolved by the Assembly, that the said Polly M. Mead be, and she is hereby divorced from the said Martin Mead, and is and forever hereafter shall be absolved from all obligations to the said Martin Mead by virtue of the said marriage contract, and is hereby declared to all intents and purposes, sole, single and unmarried.

"Resolved that the said Polly ... have the sole charge, care and custody of her only child, and that the said Martin ... shall have no power or authority over him, in any way or manner whatsoever."—Resolves and Private Acts(1837), 3.

[1042]Act of June 19, 1849:Pub. Acts of the State of Conn.(Hartford, 1849), 17.

[1043]Rhode Island Col. Rec., I, 231 (Oct. 26, 1650);cf.Arnold,Hist. of R. I., I, 322.

[1044]R. I. Col. Rec., I, 312 (1655). "And if any persons in this Colonie," continues the order, "shall part themselves and marrie again without yeauthoritie of yeCourt of Commissioners, or be convicted of carnal copulation with any other [bigamy], they shall be punished as in case of adulterie."—Ibid., 312.

[1045]Ibid., 319.

[1046]Peter Talman got a divorce on his wife's confession of adultery:Arnold,Hist. of R. I., I, 320; and it "was ordered that Thomas Genings shall goe and demand his wife to live with him, but in case she refuse, he shall make his addresses to the General Court of Commissioners."—R. I. Col. Rec., I, 312. Ann Talman, the divorced wife of Peter, referred to, was later more than once whipped for her misconduct:ibid., II, 187,188.

[1047]Durfee,Gleanings from the Judicial Hist. of R. I., 35.

[1048]Carr, Cartwright, and Maverick.

[1049]Is this the same "John Hicks" who in New Netherland obtained a divorce in 1655? See sec. iii, below.

[1050]R. I. Col. Rec., II, 99 ff. At the same time, with astonishing inconsistency, it was enacted that similar offenders shall be amenable to the laws punishing fornication, which are made more stringent; but all present reputed marriages are declared valid and the children legitimate (104, 105). By this rule Horod and George should either have been regularly divorced or ordered to cohabit as husband and wife. In any event their punishment was unjust.

[1051]Ibid., 188, 189. In the same year Robert Colwell got a divorce from his wife Mary:ibid., 204.

[1052]Arnold,Hist. of R. I., I, 320. This case came before the assembly in 1665:R. I. Col. Rec., II, 119-21;cf.Durfee,Gleanings from the Judicial Hist. of R. I., 35.

[1053]Arnold,Hist. of R. I., I, 365 (Nov., 1672). This bill was granted to Richard and Mary Pray, whom the assembly had permitted to live apart in 1667:R. I. Col. Rec., II, 479.

[1054]Ibid.(1664-77), 543.

[1055]The entry is marked "returned to county court":Early Records of Muddy River, 69.

[1056]Arnold,op. cit., I, 470 (June, 1683).

[1057]Ibid., 483 (1685).

[1058]SeeActs and Laws(Newport, 1767), 74, containing the changes made in 1749 and 1754. The superior court is authorized in its discretion to grant alimony from the husband's estate.

[1059]In that year the court of trials, composed of the governor and assistants or councillors, which with no essential change in composition and functions had existed from about 1644, was superseded by a regular law tribunal, the superior court of judicature:Arnold,op. cit., II, 157. But already in 1729 a "Superior Court," composed of at least five members of the upper branch of the legislature, and apparently lower than the court of trials, was established:ibid., 90. In general on the various stages in the history of the court of trials, seeibid., I, 210 (1647), 302 (1663-64), 460 (1680); II, 16 (1704).

[1060]In Oct., 1749, a divorce was granted by the assembly; and this is the first Arnold had noticed, probably meaning in that period:op. cit., II, 175.

[1061]Durfee,Gleanings from the Judicial Hist. of R. I., 35, 36. SeeLaws of R. I.(1851), 796, where petitions for divorce on account of wilful desertion are transferred by the assembly to the supreme court; and similar reference,ibid.(1846), 57, 85.

[1062]Bishop,Mar., Div., and Sep., I, § 116. "If an uninhabited country is discovered and planted by British subjects, the English laws are said to be in force there, for the law is the birthright of every subject."—Story,Commentaries, I, §§ 147 ff.Cf.Kent,Commentaries, I, 343, 473; andBlackstone,Commentaries, I, 107, who regards the colonies as a conquered country.

[1063]Bishop,First Book, §§ 51-59;idem,Mar., Div., and Sep., I, § 117.

[1064]The expression "all laws" is used advisedly. Though "in some of the American cases the term 'common law' is used, the broad meaning of the term, not its narrow and technical one, is intended."—Bishop,Mar., Div., and Sep., I, § 119; citing C.v.Knowlton, 2Mass. Rep., 530, 534: Sackettv.Sackett, 8Pickering,Reports, 309, 316.Cf.Jefferson,Works, VI, 65; VIII, 374, 379; IX, 282.

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